Are Leaks an Affront to Democracy?

By Conor Friedersdorf

When a government source leaks classified information to a journalist is that an affront to democracy? Is it an usurpation of legitimate choices made by elected officials? So says Rahul Sagar in Secrets and Leaks: The Dilemma of State Secrecy. His position is summarized and endorsed by Gabriel Schoenfeld, a fellow at the Hudson Institute, writing in The Claremont Review of Books. "A system where leaks are not condemned but condoned would have serious consequences and be fundamentally anti-democratic," Schoenfeld argues. "The parties involved in leaks—government bureaucrats who illicitly disclose confidential information, and journalists who disseminate it—are self-appointed, private arbiters."

Variations on this argument have been deployed by numerous critics of Edward Snowden. While reasonable in theory, they are ultimately unpersuasive for these reasons:

In theory, Sager may be right that decisions about what to declassify are ideally made by "persons or institutions that have been directly or indirectly endorsed by citizens." But in practice, the nameless bureaucrats who make the vast majority of decisions about what gets and stays classified are totally unaccountable to citizens; and it stretches credulity to characterize an official running, say, a secret program in the NSA or CIA as being "endorsed by citizens" even indirectly when it's likely that not even their congressional representative is aware of the program. The secret state is so controversial precisely because citizens can neither endorse nor condemn that which they're never told about in the first place, nor can they reelect or oust representatives on the basis of votes the implications of which they do not and cannot know. The unfortunate reality is that almost all decisions about what secret information is made public are undemocratic, whether those decisions made by leakers or nameless bureaucrats.

In fact, leakers and journalists who facilitate leaks can accurately claim that while they cannot get preemptive permission from the polity to publish a particular secret, it is usually the case that the public is happy to have the extra information. As I've argued at length repeatedly, if we ground our analysis in the factual past rather than the speculative future, journalists have a far better track record than government when it comes to deciding what ought to be revealed to the public.

There is a near consensus that the U.S. government has an over-classification problem. There are laws governing what sort of material ought to be classified. But government officials consistently and systematically classify far more material than they are justified in doing under the law. They also regularly deny Freedom of Information Act requests in bad faith and otherwise hide information because it makes them politically vulnerable or reveals their incompetence or corruption. Since no informed observer of the United States government can deny that it classifies far more information than the letter or spirit of relevant law would permit, there is a strong case to be made that government decision-makers are systematically thwarting democratic designs and the public will, and that exposing wrongly classified information serves the public will.

Insofar as leaks to journalists are undemocratic—and as I acknowledged above, they are, to a degree—they are also consistent with the deliberately undemocratic First Amendment, which was intentionally given supremacy over both the popular will of the moment and the preferences of a given Congress or president. The First Amendment emphatically and undemocratically empowers the press to publish information that Congress would otherwise suppress. There is no way to read its guarantees without concluding that the Framers thought the press should sometimes publish material even when the representatives of the people thought otherwise.

Government employees take a (democratically legitimized) oath to protect and defend the Constitution. Fulfilling that oath can sometimes require them to disobey a superior—perhaps by revealing classified, unconstitutional behavior to the public. To decide if this kind of act was democratically legitimate, one would have to decide what's more important: upholding one's oath to the Constitution, or obeying one's agreement to refrain from revealing classified information. Surely we can all think of some examples where exposing the truth would be the better option.

For these reasons, arguing against classified leaks by invoking democratic legitimacy is unpersuasive.

UPDATE

Rahul Sagar emails in response:

Thank you for the constructive comments on my book Secrets and Leaks. I write to clarify points of agreement and disagreement. We may be less far apart than appearances suggest.

1. I do not take the position that all leaks are undemocratic. I think some leaks—those that reveal clear illegality or moral wrongdoing—are legitimate. The classic example here is Deep Throat; more recent examples include disclosures of ‘black sites’ and prisoner abuse at Abu Ghraib.

2. Perhaps we disagree on leaks that reveal controversial but not clearly wrongful policies. Are these legitimate? My answer is: it depends on how carefully such disclosures are tailored. Snowden's (and Manning’s) leaks are problematic because they are indiscriminate rather than surgical (a fire hose versus a syringe). For instance, do Americans really want exposed the sources and methods used to spy on the Taliban and Iran?

3. You are right to note that leaks may receive public acclaim. Do note, however, that the public usually only knows what is on one side of the ledger. The adverse consequences of leaks are usually not made public, lest this further aid foreign intelligence agencies. Hence, we cannot be certain that the publication of leaks have caused no harm thus far. A classified, bipartisan Commission report claims there are leaks that have caused grave harm.

For the above reasons I argue in Secrets and Leaks that we should tolerate leaks, but we should also demand that leakers and reporters exercise due care. Otherwise we risk seeing rash or self-serving disclosures being passed of as a service to American democracy.

Sagar and I are going to try to arrange a lengthier back-and-forth on this subject sometime soon. In the meantime, I thank him for the response.